European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Article 34 TFEU creates a commitment obligation. Non-compliance with that obligation may result both from a positive action and passive conduct of the Member State for inactivity or insufficient activity . 
Directive No 70/50, now repealed, but which was frequently used by the EU authorities, specified that measures within the meaning of Article 34 TFEU should mean the “laws, regulations, administ …

Characteristics/Form of the measure

Article 34 TFEU creates a commitment obligation. Non-compliance with that obligation may result both from a positive action and passive conduct of the Member State for inactivity or insufficient activity . 

Directive No 70/50, now repealed, but which was frequently used by the EU authorities, specified that measures within the meaning of Article 34 TFEU should mean the “laws, regulations, administrative provisions, administrative practices, and all instruments issuing from a public authority, including recommendations” . It is irrelevant whether the measure has binding force or not , or is applied or not . The classification as a measure having equivalent effect does however require a certain degree of consistency and generality . 

Guide to the application of Treaty provisions governing free movement of goods (Art. 34 - 36 TFEU), 2nd ed., pt 3.1.5.

See for an invalidated ministerial memorandum: Case 192/84 Commission v Greece [1985] ECR 3967, LawLex200900001638JBJ; for a commercial convention between two Member States: Case C-3/91 Exportur v LOR and Confiserie du Tech [1992] ECR I-5529, LawLex200500006035JBJ.

Case 249/81 Commission v Ireland [1982] ECR 4005, LawLex200900001733JBJ: an advertising campaign without binding force intended to check the flow of intra-EU trade by encouraging the purchase of domestic products.

Case C-3/91 Exportur v LOR and Confiserie du Tech [1992] ECR I-5529, LawLex200500006035JBJ: potential effects on intra-EU trade resulting from the provisions of a commercial convention between two Member States; Case 192/84 Commission v Greece [1985] ECR 3967, LawLex200900001638JBJ, which considers that the invalidity of a ministerial memorandum which has granted more favorable credit terms for the purchase of national agricultural machinery, does not affect its classification as a measure having equivalent effect where its adoption creates an ambiguous and uncertain factual situation to the detriment of imported machinery.

For an administrative practice, on a market on which only a few economic operators are active, the criterion must be fulfilled from the administration's treatment of a single undertaking: Case 21/84 Commission v France [1985] ECR 1355, LawLex200900001656JBJ.

European Business Law

23. Characteristics/Form of the measure

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23. Characteristics/Form of the measure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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